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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4625
Experience:  Dip Law LPAB - Sydney based lawyer
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I would like an interpretation of a notice period on a fixed

Customer Question

I would like an interpretation of a notice period on a fixed term contract. I work(ed) a 3 week on 1 week (unpaid) off roster.
The initial contract was for a period of 18 months to two years starting on the 13 March.
The contract was terminated in writing on the 18th of July (of the same year) and I was told my services are no longer required after the 23rd of July.
My Terms and conditions were as below:
Length of Assignment: Approximately 18 months – 2 years
Hours of Work: 10 hours per day
Work Roster: 21 days on, 7 days off
Notice Period: One full work cycle (21 days)
This is where it comes down to interpretation. My notice was given on the 18th of July, I was due to go on my 7 day break on the 23rd of July, 5 days after I was advised I would no longer be required, and fly back to site on the 31st (7 day unpaid break). They have notified me that the notice period is going to include the 7 days unpaid leave and therefore they only owe me 8 days pay. See their interpretation below:
...... therefore your actually paid notice will be based on the 21 days less any R&R taken during that period.

18th July – 23rd July – Worked – 6 days
24th July – 30th July – R&R – Unpaid
31st July – 7th August – 8 days paid

Balance outstanding for you to be reimbursed is 8 days 31st July – 7th August.

My interpretation is "One full work cycle (21 days)" is just that 21 days work. and therefore they owe me in total 21 days pay regardless of when my R&R is.

Can someone provide some advice.
Submitted: 1 year ago.
Category: Australia Law
Expert:  replied 1 year ago.
Hello and thank you for your question.

If the notice period just says 21 days then the contract will terminate 21 days from the date notice is given and it doesn't matter whether that includes a down period or not.

From what you say though, the contract says that the notice period is for "one full work cycle (21 days)". Unfortunately this is somewhat ambiguous, since the rest of the contract appears to establish a work cycle of 28 days consisting of 21 days work and 7 days rest. I can see arguments for three different interpretations:

1. that the notice period will very arguably only expire at the end of the next full work cycle of 21 days, which would be 21 days from 30 July; or

2. that the notice period must include 21 days that you actually worked, meaning it would expire 28 days from the date you were given notice; or

3. that the bracketed reference to 21 days makes that the actual notice period so that the notice period would expire 21 days from the date you were given notice (this is what they are asserting).

To the extent the contract is ambiguous, the law provides that ambiguities of this sort are interpreted against the party who drafted the contract. So if you drafted the contract there is a good case you should accept their interpretation.

If they drafted the contract, one of the other two interpretations seems very arguable to me, though you would have to take legal action to enforce such a claim and the outcome will not be certain as it can be difficult to predict how a court will choose to approach an ambiguous term like this.

I would suggest that you write them a letter, referring to the above possible interpretations and argue that interpretation 2 above represents the best interpretation and is a compromise on the other two and then see if you can negotiate a satisfactory outcome.

Because the issue is one of contractual interpretation, rather than your employer's failure to honour a basic employment right, the ombudsman won't be able to assist you and you will need to engage a lawyer to pursue court action if you cannot reach a compromise.

If you can't negotiate a compromise and need to engage a lawyer, contact the Queensland Law Society as they can refer you to suitable lawyers in your area. Shop around because prices vary.

http://www.qls.com.au/Home

I trust the above assists your understanding.

please rate my answer so that I can be paid by the website operator for my time.

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Thank you and good luck.

Patrick
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4625
Experience: Dip Law LPAB - Sydney based lawyer
Patrick H. and other Australia Law Specialists are ready to help you
Customer: replied 1 year ago.


Just out of curiosity where would I go for legal advice....I live in WA and was contracting through a WA employment agency to a Queensland Mining company...should I seek legal advice in WA or Queensland.


 


Thanks


 

Expert:  Patrick H. replied 1 year ago.
The terms of your contract should say which jurisdiction applies, but if in doubt it is likely the place where you worked, presumably Queensland.

The laws governing employment contracts and interpretation are essentially the same in all Australian territories however.

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